Zayas v. Harris

          FINDINGS AND RECOMMENDATIONS TO DENY FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 26) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         In 2011, Rodney Zayas was convicted of second degree murder and sentenced to forty years-to-life. In this action, Mr. Zayas contends he is entitled to habeas relief for various grounds including juror and prosecutorial misconduct, among other claims. Because the Court does not find any basis for relief, it recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         After his conviction in the County of Tulare Superior Court, Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the “5^th DCA”), which affirmed the conviction. (People v. Zayas, 2012 WL 2358046 (Cal.App. June 21, 2012)). Petitioner then filed a petition for review in the California Supreme Court, which was denied. (Lodged Document (“LD”) 3; 4)

         Petitioner filed his first state habeas corpus petition in the California Supreme Court; it was denied. (LD 6, 7) Petitioner filed another habeas petition in the California Supreme Court on July 28, 2014; it was denied on October 29, 2014. (LD 16, 17)

         On November 18, 2013, Petitioner filed the instant petition. (Doc. 1) On February 19, 2014, espondent filed a motion to dismiss the petition because it contained unexhausted claims, i.e., rounds three and seven. (Doc. 12) On June 2, 2014, Petitioner filed a motion to withdraw the nexhausted claims. (Doc. 16) The Court granted Petitioner the opportunity to file a motion for stay f proceedings to exhaust the two unexhausted claims. (Doc. 18) Petitioner filed his motion for stay. Doc. 19) The Court granted the motion for stay, and, after Petitioner exhausted the unexhausted laims, permitted Petitioner to amend the original petition to include the newly exhausted claims. Docs. 22; 24) The first amended petition was filed on January 1, 2015. (Doc. 26) Respondent’s nswer was filed on April 7, 2015. (Doc. 35) On May 18, 2015, Petitioner filed his Traverse. (Doc. 1)

         Respondent does not appear to contend that any of the grounds for relief in the petition have ot been fully exhausted. (Doc. 35, p. 9) However, Respondent does argue, as discussed infra, that rounds seven and eight of the first amended petition are procedurally defaulted as untimely. (Id.)

         FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the 5^th DCA’s unpublished decision^[1]:

About 7:45 p.m. on August 28, 2009, Tulare County Sheriff's Sergeant Douglas Winslow was dispatched to investigate a report of a shooting. When he arrived at the scene, there were 25 to 30 people standing on the sidewalk, and the victim, Arturo Bello, was lying face down in the road about eight feet from the sidewalk. Winslow found no weapons at the scene. Emergency personnel arrived and confirmed Bello was dead. Bello was dressed in the color blue.

Sheriff's Detective Michael Yandell responded to a felony traffic stop that same night. The fou occupants of the car, including Zayas, were removed from the car at gunpoint and detained and a gunshot residue test was conducted on Zayas's hands. One witness at the “in-field show-up” positively identified all four occupants of the car as being involved in the shooting of Bello and identified Zayas as the shooter.

In a taped interview that night, Zayas waived his rights and agreed to be interviewed. Zayas briefly discussed that his brother had been shot and killed by Surenos. Zayas had Norteno gan tattoos and when asked about them he stated he gravitated toward the people with whom his brother had associated. At the time of Bello's shooting, Zayas claimed he was “very intoxicated and did not “remember too much.” Zayas eventually acknowledged that he pulled out a gun because he “fel[t] threatened.” He did not recall how many times he fired his gun and claimed he did not see the person he shot.

On August 29, 2009, a search pursuant to a search warrant was conducted at a residence. The search uncovered indicia that Zayas lived in a bedroom at that residence. In the bedroom was a shotgun loaded with five live rounds, letters addressed to Zayas from incarcerated inmates, and red clothing.

Zayas, Joshua Lee Hernandez, Richard Miguel Garcia, and Santos Hernandez were charged with conspiracy to commit murder, the murder of Bello, and the attempted murder of G.C. It was alleged as to all three counts that they were committed for the benefit of a criminal street gang. A special circumstance appended to the murder count alleged that the murder was committed by active participants in a criminal street gang and that it furthered the activities of the gang.

Prior to trial the trial court granted the prosecutor's motion to sever the trials of the four defendants and the motion to dismiss the conspiracy count. Also, Zayas moved to bifurcate the trial on the gang allegations from the substantive offense, which the trial court denied. Zayas then moved to limit the admissibility of gang evidence. The trial court heard argument and made a tentative ruling.

At trial the analysis of the gunshot residue test of Zayas's hands established that he had gunshot residue on both his right and left hands. Expert testimony established that Bello was identifying himself as a Sureno. Expert testimony also established that the Nortenos and Surenos were enemies, that Zayas and his companions, on the evening of the shooting, were Norteno gang members, and that the charged crimes were committed for the benefit of the Norteno gang.

Zayas testified on his own behalf. He testified regarding his brother's death, his decision to carry a gun, interviews he gave to the police, and questionnaires he filled out at the time of booking. Zayas claimed he was a certified medical assistant and was on a waiting list at Fresno City College for the nursing program.

Zayas said he and his companions had been drinking and “smoking pot” on the day Bello was shot. While driving through a neighborhood, Zayas said some people wearing the color blue threw something at the car they were in, so they stopped and got out of their car. One of the persons wearing blue approached them. Zayas thought he saw something “shine” or “glare” from the person's waistband, so he pulled out his gun and shot at the person.

The jury found Zayas not guilty of first degree murder as charged but guilty of second degree murder. The jury found true that a principal personally discharged a firearm and that the crime was committed for the benefit of a criminal street gang. The jury found him not guilty of attempted murder. On May 20, 2011, Zayas was sentenced to a term of 40 years to life.

(Zayas, 2012 WL 2358046, at *1-2).

         DISCUSSION

         I. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Tulare County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         II. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406 (2000).

         In Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 131 S.Ct. at 787-788.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500. A state court’s factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Id.; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         III. Review of Petitioner’s Claims

         In his petition, Mr. Zayas claims the following as grounds for relief: (1) juror misconduct as to juror no. 6; (2) ineffective assistance of trial counsel for not adequately questioning and dismissing juror no. 6; (3) due process error in denial of the bifurcation motion; (4) due process violation for failure to excuse juror who expressed fear; (5) error in admission of evidence; (6) prosecutorial misconduct in closing argument; (7) ineffective assistance of counsel in admitting Petitioner’s school records; (8) prosecutorial misconduct in implying during Petitioner’s cross-examination that she had more evidence than she did of his brother’s murder; and, (9) cumulative error. (Doc. 26).

         A. Juror Misconduct

         Petitioner first contends that Juror number 6 should have been excused because of misconduct in making an unauthorized telephone call and for her relationship to a potential witness at trial. This contention is without merit.

         1. Standard of Review

         Petitioner raised this claim by way of a habeas corpus petition in the California Supreme Court, which summarily rejected the claim without issuing a reasoned decision. Where, as here, the state court reached a decision on the merits but provided no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley v. Cullen, 633 F.3d 852, 860 (9^th Cir. 2011). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. “[A]lthough we independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9^th Cir. 2002). Where no reasoned decision is available, the habeas petitioner still has the burden of “showing there was no reasonable basis for the state court to deny relief.” Harrington, 131 S.Ct. at 784.

         2. Trial Hearing on Juror No. 6

         During trial, Juror number 6 approached the bailiff and, out of earshot of other jurors, indicated to him that when she heard the testimony of Detective Sanchez, who mentioned the name of another deputy sheriff, Joseph Aguilar, who was Juror number 6’s brother-in-law, she realized that her relative had worked on Petitioner’s case. (LD 12, p. 471) At an in camera hearing, Juror number 6 told the judge that, during a recess and after she heard her brother-in-law’s name mentioned by Sanchez, she called Aguilar, who told her only that he was under subpoena in this case. (LD 12, p. 473) Juror number 6 stated that Aguilar did not say anything else about the case and that she knew nothing else except that Aguilar’s name had been mentioned by Sanchez. (Id., p. 474)

         The judge asked Juror number 6 if she could be fair and impartial, and she insisted she could. (Id., p. 475) In response to queries from the judge, Juror number 6 also stated she was very close to Aguilar, he told her nothing about the case, she had not learned anything about the case from outside sources, and the fact that Aguilar may be involved in the case would not influence her. (Id., p. 476)

         During the colloquy, Juror number 6 also disclosed that, at some point in the past, her property and that of her neighbors had been vandalized by Sureno gang members. After Juror no. 6 spoke about the gang problem at a board of supervisors meeting, her vehicle was vandalized as well. She was quoted in the local newspaper as referring to gang members as “cockroaches.” The judge asked her if she could be fair and impartial and Juror number 6 insisted that she could: “It doesn’t matter what I’ve heard. I went to gang unit presentations where, you know, it doesn’t matter what I’ve heard, what I seen. I don’t know for a fact that he did anything.” (LD 12, pp. 477-479)

         When asked for a response by the judge, defense counsel stated, “Not really, Your Honor. It’s kind of one of those tough calls.” (Id., p. 480) The judge then ruled as follows: “She has made it clear that she believes that she can be fair. I think she also made it clear that if her brother-in-law testified that she wouldn’t be biased toward him, which he’s not going to testify, but I don’t see a reason to remove her.” (Id.) Defense counsel replied, “Okay.” (Id.)

         3. Federal Standard

         "In all criminal prosecutions, " state and federal, "the accused shall enjoy the right to . . . trial . . . by an impartial jury, " U.S. Const., Amends. 6 and 14; see Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444 (1968); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639 (1961). “Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury.” Tinsley v. Borg, 895 F.2d 520, 523-524 (9^th Cir. 1990). In reviewing a claim of juror misconduct, "[t]he test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." United States v. Klee, 494 F.2d 394, 396 (9th Cir.1974). However, while the Supreme Court has never rejected the idea of implied juror bias, implied bias by a juror has rarely been applied. See United States v. Plache; 913 F.2d 1375, 1377 (9th Cir. 1990); Tinsley v. Borg, 895 F.2d at 527. "Only in extreme or extraordinary cases should bias be presumed." Plache; 913 F.2d at 1377, quoting, Tinsley, 895 F.2d at 527.

         Moreover, the Constitution “does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940 (1982). The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Id. Due process means only a jury capable and willing to decide the case solely on the evidence before it and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Id. Although it is generally preferred that a trial court hold an evidentiary hearing when allegations of juror misconduct arise, it is not always required, particularly when the court knows the exact scope and nature of the misconduct. See United States v. Halbert, 712 F.2d 388, 389 (9^th Cir.1983); United States v. Hendrix, 549 F.2d 1225, 1227 (9^thCir.1977); see also United States v. McVeigh, 153 F.3d 1166, 1187 (10th Cir.1998).

         The Ninth Circuit recognized that to disqualify a juror for cause requires a showing of actual bias or implied bias; that is, “bias in fact, or bias conclusively presumed as a matter of law.” United States v. Gonzalez, 214 F.3d 1109, 1111-12 (9th Cir.2000). There are three theories of juror bias based on a misstatement by a juror during voir dire: (1) McDonough-style bias (i.e., the juror fails to answer honestly and, had he answered correctly, the information would have provided a basis for a challenge for cause, see McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)); (2) “actual bias, which stems from a pre-set disposition not to decide an issue impartially;” and (3) “implied (or presumptive) bias, which may exist in exceptional circumstances where, for example a prospective juror has a relationship to the crime itself or to someone involved in a trial, or has repeatedly lied about a material fact to get on the jury.” Fields v. Brown, 503 F.3d 755, 766 (9th Cir.2007) (en banc).

         If a juror failed to answer a voir dire question correctly, a petitioner may obtain a new trial by showing: (1) that the juror failed to answer honestly a voir dire question, and (2) that this undermined the impartiality of the petitioner's jury. See Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.1998) (en banc). The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of the trial. See McDonough, 464 U.S. at 556. Forgetfulness, for example, does not indicate lack of impartiality. See United States v. Edmond, 43 F.3d 472, 473-74 (9th Cir.1994) (no misconduct where district court found juror's testimony that he forgot about being victim of armed robbery truthful).

         4. Analysis

         Although the state court properly conducted a full hearing and engaged Juror no. 6 in a meaningful colloquy about her ability to be fair and impartial, it also bears emphasis that the trial judge’s exercise of his or her responsibility to be “ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen, ” Smith, 455 U.S. at 217 n. 7, inherently involves the trial court’s “appraisal of witness credibility and demeanor.” Thompson v. Keohane, 516 U.S. 99, 111 (1995). In performing that function, the trial judge is best positioned to make decisions regarding credibility and demeanor; hence, the “judgment of the jurist-observer” has been given “presumptive weight” in these matters. Id. As a result, juror impartiality is a factual issue that is within the statutory presumption of correctness. Id.; Wainwright v. Witt, 469 U.S. 412, 429 (1985); Tinsley, 895 F.2d at 525 (“findings of state trial and appellate courts on juror impartiality deserve ‘a high measure of deference.’”); see Skilling v. United States, __U.S.__, 130 S.Ct. 2896, 2918 (2010)(“reviewing courts are properly resistant to second-guessing the trial judge’s estimation of a juror’s impartiality….”).

         Here, the state court conducted a full hearing on the issue, the juror was questioned, and both attorneys were afforded an opportunity to further question the juror and make arguments in support of their clients. Neither attorney requested that Juror number 6 be removed. Indeed, the lack of response to the judge’s invitation for further inquiry would suggest that neither attorney believed that grounds for removing Juror no. 6 were present. Moreover, the judge repeatedly asked Juror no. 6 if she could be fair and impartial, notwithstanding her relationship to Aguilar, a potential witness but not one that the judge expected to actually be called at trial, and despite her having been the victim on several occasions of gang intimidation and the vandalizing of her property. Nothing in Juror number 6’s responses suggested that she was unfairly biased against Petitioner or that she could not fully discharge her responsibilities as a juror. In short, there is nothing in the record to support a conclusion that Juror number 6 was actually or impliedly biased and should have been removed from the jury by the trial judge. Such critical credibility decisions, made by the “jurist-observer” who was actually present during Juror number 6’s questioning, should not be overturned in the total absence of any evidence of prejudice or bias.

         As mentioned, due process means only a jury capable and willing to decide the case solely on the evidence before it and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Smith v. Phillips, 455 U.S. at 217. That appears to be precisely took place in this case, i.e., a juror willing to decide the case impartially and a judge carefully monitoring the situation to assess whether the jury could, in fact, be impartial. Due process was not violated. Hence, the Court’s independent review of the record supports the conclusion that the claim should be rejected.

         B. Ineffective Assistance of Trial Counsel Regarding Juror Number 6

         Petitioner next contends that trial counsel was ineffective for not conducting a sufficient inquiry into Juror number 6’s potential bias.

         1. Standard of Review

         The state supreme court summarily denied Petitioner’s habeas claim on this issue. Accordingly, as with the prior claim, the Court will independently review this claim.

         2. Federal Standard For Ineffective Assistance of Counsel

         Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of counsel are reviewed according to Strickland 's two-pronged test. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been actually or constructively denied the assistance of counsel altogether, the Strickland standard does not apply and prejudice is presumed; the implication is that Strickland does apply where counsel is present but ineffective).

         To prevail, Petitioner must show two things. First, he must establish that counsel’s deficient performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052 (1984). Second, Petitioner must establish that he suffered prejudice in that there was a reasonable probability that, but for counsel’s unprofessional errors, he would have prevailed on appeal. Id. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not what counsel could have done; rather, it is whether the choices made by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998).

         With the passage of the AEDPA, habeas relief may only be granted if the state-court decision unreasonably applied this general Strickland standard for ineffective assistance. Knowles v. Mirzayance, 556 U.S. __, 129 S.Ct. 1411, 1419 (2009). Accordingly, the question “is not whether a federal court believes the state court’s determination under the Strickland standard “was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Knowles, 129 S.Ct. at 1420. In effect, the AEDPA standard is “doubly deferential” because it requires that it be shown not only that the state court determination was erroneous, but also that it was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. ...